Tenancy: Writ To Regain Possession Cures Irregularity In Quit Notice

Supreme Court of Nigeria

Holden at Abuja
On Friday, the 5th day of February, 2021

Before Their Lordships

OLABODE RHODES-VIVOUR, JSC

MUSA DATTIJO MUHAMMAD, JSC

HELEN MORONKEJI OGUNWUMIJU, JSC

ABDU ABOKI, JSC

EMMANUEL AKOMAYE AGIM, JSC

BETWEEN:

PILLARS NIG. LTD

AND

WILLIAMS KOJO DESBORDES & 1 Or

(Lead Judgment delivered by Honourable Justice Emmanuel Akomaye Agim, JSC)

Facts of the case:

The cause of action in this appeal is the contract of lease for a plot of land at plot B, Sabiu Ajose Crescent, Surulere Lagos. The contract of lease was completed on 24 October 1977, when the Respondent as lessor entered into a 26 year Developer’s lease to erect a building within 2years on or before 1979 on payment of annual rent payable in advance. The suit was initiated by the Respondents as lessor in 1993 to recover the property due to non compliance with leasing terms of erecting a building on the land. Both lower Courts found that the Appellant as lessee breached the terms of lease. The 1st issue and complaint is that the Court of Appeal was wrong to affirm the judgment of the trial Court that the Respondent pleaded and proved service of statutory “Notice of breach of covenant” Exhibit E. It is trite that facts only and not the evidence to prove the facts need to be pleaded. Specific documentary evidence need not be pleaded as long as the facts relating to the document are expressly pleaded.

The Appellant in this appeal in formulating ground one in the notice of appeal, complained about the decision of the Court of Appeal affirming the decision of the trial court accepting PW 1’s evidence as credible against the testimony of DW1. However, in formulating the issues for determination, the first issue formulated questioned whether the Court of Appeal was right in affirming the decision of the trial Court that the Respondent did plead and proved service of statutory notices of breach of covenant Exhibit E and Notice to Quit Exhibit G as required by law. The issue did not emanate from the first ground of appeal.

Issue for determination

Whether the Court of Appeal was right in affirming the decision of the trial Court that the Respondents did plead and prove service of Statutory Notice of Breach of Covenant (Exhibit E) and Notice of Quit (Exhibit G) as required by law.

Judgment of the court and the reason

The Supreme Court held that an issue is derived from a ground where the subject matter of the issue is the same as the subject matter of the complaint in the ground. Any issue raised for determination in an appeal that is not based on or covered by any ground of the appeal is not valid for consideration and must be struck out. In this instant appeal, no issue was distilled from Ground one in the Notice of Appeal. By not raising any issue for determination from the said ground one, the Appellant herein has abandoned the ground one and same was struck out.

In resolving the issue questioning the decision of the court of appeal which affirmed the decision of the trial Court to the extent that the Respondents pleaded and proved the service of statutory “Notice of Breach of Covenant (Exhibit E), relying on Order 17 Rule 4 of the High Court of Lagos State Civil Procedure) Law (1994), Cap. 61 which provides that: “Every pleading shall contain, and contain only a statement in a summary form the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.” the Supreme Court held that the provisions of Order 17 Rule 4 of the High Court of Lagos State Civil Procedure) Rules (1994) Cap is explicit and unequivocal. Pleadings should contain facts and not evidence. Documentary evidence need not be specifically pleaded in order to be admissible, as long as facts and not the evidence by which such a document is covered are expressly pleaded. Their Lordships relied on Okonkwo v. Co-operative and Commerce Bank (Nig.) Plc & 2 Others (2003) 8 NWLR (pt. 822) 347. The Court stated that the Plaintiff/Respondent in paragraph 9 of their Amended Statement of Claim, pleaded letters and Notice of Breach of Covenant. The contents of these documents are facts. When a document is referred to in a pleading, it ought to be tied to the facts for which it has been cited. Where the facts are stated in respect of the breach and not directly tied to the document, notice of breach if pleaded, it should suffice as in the instance cases. It is imperative, that utmost care be observed whilst drafting pleadings in order to ensure material facts are stated. Their Lordships relied on The Authors of Bullen & Leake: Precedents of Pleading (12th Edition) page 44.

On issue of whether the Respondent should have pleaded the legal effect of the Notice of the Breach as a fact before it is tendered. The Supreme Court held that to plead the legal effect of the Notice of the Breach as a fact before it is tendered is a clear misconception of the modern rule on pleadings. The strict rigid old legal terminology of pleading have since changed in line with new procedures. The pleader is not bound to state the legal result of a document pleaded or facts pleaded. Any attempt to so state legal effect will amount to argument in pleadings. Any legal consequence which the facts admit should be reserved for argument in brief.

Appellant counsel Mr. Anaenugwu urged the Court to invoke Section 149 (d) of the Evidence Act, in view of the failure of the Plaintiff/Respondent to call Mr. Alade Akinsode or whoever effected service of Exhibit E to testify as to the mode of service. The Appellant in their Amended Statement of Defence on paragraph 4, pleaded a general traverse and in paragraph 5, tried to respond to paragraph 9 by pleading that based on the agreement between the Plaintiff and Defendant, they submitted a Building Plan. This response is not a denial of the existence of the Notice of Breach Exhibit E. The general traverse in paragraph 4 is equally not of value particularly when DW1 in evidence admitted Service of Notice of Intention after the denial in the pleading. The learned trial Judge rightly held that Exhibits E and G were served on the Appellant. This issue fails.

The Court stated that there is no Ground of this Appeal complaining against the decision of the Court of Appeal that the Appellant is estopped from contending that the Notice of Breach of Covenant was not pleaded as it was tendered and admitted in evidence as Exhibit E without its objection to its admissibility. By not appealing against this decision, the Appellant accepted it as correct, conclusive and binding upon it. Having accepted the decision as correct, conclusive and binding upon it, it cannot validly argue in this appeal that Exhibit E was not pleaded or sufficiently pleaded. It is trite law that in an appeal against a judgment, a party who did not appeal against a finding, holding or decision, accepts it as correct, conclusive and binding and cannot argue against it. As held in Iyoho v. Effiong (2007) 4 SC (pt. 11) 90 and Dabup v. Kolo (1993) 12 SCNJ 1.

The Supreme Court further stated that the argument of an appeal against a decision must refer to the decision being argued against and show that the decision is wrong for some reason. An argument would be ineffective and invalid if it does not refer to the decision complained against and does not demonstrate why it is wrong.

Agreeing with the lead judgment Honourable Ogunwumiju, JSC held that the strongest point made by the Appellant is that the Respondent had waived their right to forfeiture by demanding and collecting rent till 1995. His Lordship agreed with the decision of the Court below in agreeing with the High Court that even though the Respondent collected rent till 1991, there was a letter by the Respondent’s Counsel- Exhibit N written in 1992 clearly showing an intention to terminate the lease. The fact that a landlord collected rent on a property still in occupation or possession of the tenant after Notice to Quit has been issued cannot by any stretch of the law, equity or imagination amount to a waiver of the Notice to Quit even where the notice had expired and the tenant refused to yield possession in time. The Notice to Quit would subsist until it is formally rescinded by the landlord and/or when a fresh tenancy agreement is entered into.

His Lordship, Honourable Ogunwumiju, JSC, held that equity demands that wherever and whenever there is controversy on when or how a Notice of Forfeiture or Notice to Quit is disputed by the parties, or even where there is irregularity in giving of a Notice to Quit, the filing of an action by the landlord to regain possession of the property has to be sufficient to the tenant that he is required to yield up possession. Whatever form the periodic tenancy is, whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to regain possession, the irregularity of the Notice if any, is cured. Time to give notice should start to run from the date the writ is served. The ruse of faulty notice used by tenants to perpetuate possession in a house or property which the landlord had slaved to build and relies on for means of sustenance cannot be sustained in any just society under the guise of adherence to any technical rule.

The court held further as follows:

I am not saying here that statutory and proper Notice to Quit should not be given. Whatever form the periodic tenancy is, whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to regain possession, the irregularity of the Notice if any, is cured. Time to give notice should start to run from the date the writ is served. If for example, a yearly tenant, six months after the writ is served and so on. All the dance drama around the issue of the irregularity of the notice ends. The Court would only be required to settle other issues if any, between the parties. This appeal has absolutely no merit and it is hereby dismissed.

Appeal Dismissed

Representation

Chigbo Anaenugwu, with him, V. I. P. Ozumba – for the Appellant.

Tochukwu Onyiuke (with him, Nnemeka Otagburuagu and Adaeze Anah) – for the Respondents

Reported in (2021) Modern Weekly Law Report (MWLR) pt 13 P. 585-608

(Modern Weekly Law Report (MWLR) is a publication of Doyen Law Publishers Limited)